N . 15-1111, 15-1112 OS IIIIInnnnn ttttthhhhheeeee SSSSSuuuuuppppprrrrreeeeemmmmmeeeee CCCCCooooouuuuurrrrrttttt ooooofffff ttttthhhhheeeee UUUUUnnnnniiiiittttteeeeeddddd SSSSStttttaaaaattttteeeeesssss BANK OF AMERICA CORPORATION, et al., Petitioners, v. CITY OF MIAMI, FLORIDA, Respondent. WELLS FARGO & CO., et al., Petitioners, v. CITY OF MIAMI, FLORIDA, Respondent. On Writs of Certiorari to the United States Court of Appeals for the Eleventh Circuit BRIEF OF AMICI CURIAE ANITA TRAFFICANTE, ET AL. IN SUPPORT OF RESPONDENT JOHN P. RELMAN Counsel of Record SASHA SAMBERG-CHAMPION MICHAEL G. ALLEN STEPHEN M. DANE RELMAN, DANE & COLFAX PLLC 1225 19th Street NW, Ste 600 Washington, DC 20036 (202) 728-1888 [email protected] Attorneys for Amici Curiae Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. Trafficante Recognizes Congress Intended Those Who Are Not “Direct Victims” to Have Standing to Enforce the Fair Housing Act, For “They Too Suffered” From Segregation 12 II. Housing Developers Have Uncovered And Successfully Challenged Many Of The Most Discriminatory Housing Practices . . . . . . . . 21 III. Organizations Have Brought Suits That Dismantle Barriers to Housing for Individuals With Disabilities . . . . . . . . . . . . 28 IV. The Act’s History Confirms The Correctness of This Court’s Holdings Rather Than Providing Reason To Reconsider Them . . . . 32 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 ii TABLE OF AUTHORITIES Cases Buckeye Cmty Hope Found. v. City of Cuyahoga Falls, 263 F.3d 627 (6th Cir. 2001) . . . . . . . . . . . . . . . 26 Buckeye Cmty Hope Found. v. Vill. of Tinley Park, No. 1:16-cv-4430 (N.D. Ill.) (filed Apr. 19, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 City of Cuyahoga Falls, Ohio v. Buckeye Cmty Hope Foundation, 538 U.S. 188 (2003) . . . . . . . . . . . . . . . . . . . . . . 25 City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) . . . . . . . . . . . . . . . . . . . . . . 29 Dorsey v. Stuyvesant Town, 299 N.Y. 512 (1949) . . . . . . . . . . . . . . . . . . . . . . 13 Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979) . . . . . . . . . . . . . . . . . . . . 19, 34 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) . . . . . . . . . . . . . . . . . . . 19, 20 Holmes v. SIPC, 503 U.S. 258 (1992) . . . . . . . . . . . . . . . . . . . . . . . 4 Oxford House, Inc. v. City of Baton Rouge, La., 932 F. Supp. 2d 683 (M.D. La. 2013) . . . . . . . . 29 Tex. Dep’t of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507 (2015) . . . . . . . . . . . . . . . . passim iii The Anderson Group, LLC v. City of Saratoga Springs, 805 F.3d 34 (2d Cir. 2015) . . . . . . . . . . . . . . . . . 27 Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011) . . . . . . . . . . . . . . . . . . 32, 33 Town of Huntington v. Huntington Branch, NAACP, 488 U.S. 15 (1988) . . . . . . . . . . . . . . . . . . . . . . . 20 Trafficante v. Metropolitan Life Ins. Co., No. C-70-1754 (N.D. Cal.) (filed Dec. 14, 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Trafficante v. Metropolitan Life Ins. Co., 446 F.2d 1158 (9th Cir. 1971) . . . . . . . . . . . . . . 17 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . passim Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565 (2d Cir. 2003) . . . . . . . . . . . . . . . . 30 Viens v. Am. Empire Surplus Lines Ins. Co., 113 F. Supp. 3d 555 (D. Conn. 2015) . . . . . . . . 28 Vill. of Arlington Heights, Ill. v. Metropolitan Housing Dev. Co., 429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . . . . 21 Wai v. Allstate Ins. Co., 75 F. Supp. 2d 1 (D.D.C. 1999) . . . . . . . . . . . . . 30 Warth v. Seldin, 422 U.S. 490 (1975) . . . . . . . . . . . . . . . . . . . . . . 21 Statutes 42 U.S.C. § 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 iv 42 U.S.C. § 2000e-5(e)(1) . . . . . . . . . . . . . . . . . . . . . 34 Miscellaneous Benjamin Alexander-Bloch, St. Bernard Apartments In Demand, Despite Controversy, New Orleans Times-Picayune, Feb. 13, 2012, available at http://www.nola.com/business/index.ssf/2012/0 2/controversy_hasnt_quelled_dema.html . . . . . 23 Bias Charged to Parkmerced, S.F. Chronicle, Aug. 19, 1970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Justice Department Charges St. Bernard Parish, Louisiana for Limited Rental Housing Opportunities for African-Americans, available at https://www.justice.gov/opa/pr/justice- department-charges-st-bernard-parish- louisiana-limited-rental-housing- opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . 24 NFHA, 2015 Fair Housing Trend Report . . . . . 20, 25 Oliver Wendell Holmes, Jr., In the Common Law (1881) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Parkmerced Tenant Ouster Laid to Strike Aid, S.F. Examiner and Chronicle, June 1, 1969 . . . . . . . 15 PVA, Real Estate Developer Agrees to Retrofit Apartment Complexes in Maryland, Virginia, North Carolina and South Carolina to Meet Accessibility Standards, available at http://www.pva.org/site/apps/nlnet/content2.as px?c=ajIRK9NJLcJ2E&b=6445883&ct=124924 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 v St. Bernard Parish, Louisiana Agrees to $2.5 Million Settlement to Resolve Housing Discrimination Lawsuits, available at https://www.justice.gov/opa/pr/st-bernard- parish-louisiana-agrees-25-million-settlementto- resolve-housing-discrimination . . . . . . . . . . 24, 25 Tenant Wins Parkmerced Battle, S.F. Chronicle, July 3, 1969 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Terry Link, The Parkmerced Problem, San Francisco, Apr. 1972 . . . . . . . . . . . . . . . 14, 15, 18 1 INTEREST OF AMICI CURIAE1 Anita Trafficante is the daughter of Paul and Margaret Trafficante. Paul Trafficante was lead plaintiff in Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205 (1972), which established the Fair Housing Act standing principles that petitioners now seek to roll back. Margaret Trafficante played a vital role in initiating that lawsuit and implementing its settlement, which integrated Parkmerced. Anita Trafficante has an interest in her family’s legacy of vigorous Fair Housing Act enforcement in the service of achieving truly integrated and fair housing. Provident Realty Advisors, Inc. is a private real estate and investment corporation based in Dallas, Texas. Provident has built thousands of units of multi- family housing in Texas and Louisiana, many of them set aside for people with limited income. It has relied on this Court’s precedents providing for broad standing under the Fair Housing Act to challenge municipal restrictions on such developments that discriminate against potential residents. It has an interest in ensuring that standing under the Act will continue to be broad enough that it can challenge such discrimination in the future. Buckeye Community Hope Foundation is a non-profit corporation that, among other things, develops high-quality, affordable housing. Buckeye has 1 This brief was not authored in whole or part by counsel for a party. No one other than amicus curiae or its counsel made a monetary contribution to preparation or submission of this brief. Letters of consent to filing from counsel for all parties are on file with the Clerk. 2 developed affordable housing in eight states and has been or currently is the developer of 90 affordable housing projects; it has partnered in developing many others. Buckeye has relied on the Fair Housing Act’s broad standing to challenge race-based opposition to such projects, including in a case that came before this Court. It has an interest in ensuring that the Act will continue to be construed so that it can challenge such discrimination in the future. The Anderson Group is a family-owned real estate and development company. It attempted to build a mixed-income residential development in Saratoga Springs, N.Y., that was blocked because of opposition to the project’s affordable component. The Anderson Group successfully challenged the denial under the Fair Housing Act based on its disparate impact on African Americans and families with children. The Anderson Group has an interest in ensuring that the Fair Housing Act permits it to challenge similar denials of housing projects that further racial integration. Oxford House, Inc. is a non-profit corporation devoted to creating and maintaining houses for people recovering from drug and alcohol addiction. It is the umbrella organization for more than 2,000 independent Oxford Houses around the country. Oxford House has found it necessary to enforce its rights and those of its affiliates and residents under the Fair Housing Act, including in a case that came before this Court. It has a strong interest in ensuring that it will continue to be able to do so. 3 Paralyzed Veterans of America is a congressionally chartered veterans-service organization devoted to improving the lives of veterans who have experienced spinal cord injury or disease and all people with disabilities. It has found it necessary to enforce the rights of those it serves through litigation, including under the Fair Housing Act. It has a strong interest in ensuring that it will continue to be able to do so. SUMMARY OF ARGUMENT More than forty years ago, when the Fair Housing Act was young, this Court declared in no uncertain terms that standing for private parties to enforce the Act extends to the limits permitted by Article III. This Court recognized that such broad standing is required to realize Congress’ vision of a law that truly breaks down discriminatory barriers to housing and promotes residential integration. It found that the Act’s enforcement depends on what it termed “private attorneys general,” who are not necessarily the direct objects of discrimination but can claim some interest in the matter that satisfies Article III’s requirements. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972). Petitioners now ask this Court to abandon its long- standing jurisprudence regarding the breadth of Fair Housing Act standing, such that plaintiffs must not only satisfy Article III’s requirements but also establish that they are within the Act’s “zone of interests.” In so doing they assert that the premises underlying Trafficante were mistaken or are no longer true. They assure this Court that imposing new limits on Fair Housing Act standing will in no way impair the Act’s 4 effectiveness, because “directly injured victims can generally be counted on to vindicate the law.” Bank of America Br. at 50 (quoting Holmes v. SIPC, 503 U.S. 258, 269 (1992). This statement goes unsupported, as though it were as self-evidently true for victims of housing discrimination as for the purchasers of securities in Holmes. It is not. The reality is that, from Trafficante until the present, broad standing for private parties to enforce the Fair Housing Act has been absolutely essential to the Act’s “continuing role in moving the Nation toward a more integrated society.” Tex. Dep’t of Hous. and Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507, 2526 (2015) (“ICP”). Many of the lawsuits that have done the most to “eradicate discriminatory practices” in housing, id. at 2521, have been brought by those who are not direct victims. Such suits include Fair Housing Act cases that have reached this Court and cases this Court has recognized as “heartland” suits that, by eliminating “artificial barriers to housing,” clearly serve the Fair Housing Act’s purposes. Id. at 2522. That is because, in practice, those harmed most concretely – making them aware of the injury, motivated to remedy it, and able to present a justiciable controversy in court – are not necessarily those against whom the discrimination is directed. Moreover, formidable obstacles often stand between “direct victims” and the courthouse, such that broad standing is essential to vindicate the Act’s requirements. Amici signing this brief have been plaintiffs in such cases or represent such plaintiffs’ interests. They file this brief so that this Court, in deciding whether to